Spies Among Us

Despite a troubled history, police across the nation are keeping tabs on
ordinary Americans

By David E. Kaplan

In the Atlanta suburbs of DeKalb County, local officials wasted no time after
the 9/11 attacks. The second-most-populous county in Georgia, the area is
home to the Centers for Disease Control and Prevention, the FBI's regional
headquarters, and other potential terrorist targets. Within weeks of the
attacks, officials there boasted that they had set up the nation's first
local department of homeland security. Dozens of other communities followed,
and, like them, DeKalb County put in for--and got--a series of generous federal
counterterrorism grants. The county received nearly $12 million from Washington,
using it to set up, among other things, a police intelligence unit.

The outfit stumbled in 2002, when two of its agents were assigned to follow
around the county executive. Their job: to determine whether he was being
tailed--not by al Qaeda but by a district attorney investigator looking into
alleged misspending. A year later, one of its plainclothes agents was seen
photographing a handful of vegan activists handing out antimeat leaflets
in front of a HoneyBaked Ham store. Police arrested two of the vegans and
demanded that they turn over notes, on which they'd written the license-plate
number of an undercover car, according to the American Civil Liberties Union,
which is now suing the county. An Atlanta Journal-Constitution editorial
neatly summed up the incident: "So now we know: Glazed hams are safe in DeKalb
County."

Glazed hams aren't the only items that America's local cops are protecting
from dubious threats. U.S. News has identified nearly a dozen cases in which
city and county police, in the name of homeland security, have surveilled
or harassed animal-rights and antiwar protesters, union activists, and even
library patrons surfing the Web. Unlike with Washington's warrantless domestic
surveillance program, little attention has been focused on the role of state
and local authorities in the war on terrorism. A U.S.News inquiry found that
federal officials have funneled hundreds of millions of dollars into once
discredited state and local police intelligence operations. Millions more
have gone into building up regional law enforcement databases to unprecedented
levels. In dozens of interviews, officials across the nation have stressed
that the enhanced intelligence work is vital to the nation's security, but
even its biggest boosters worry about a lack of training and standards. "This
is going to be the challenge," says Los Angeles Police Chief William Bratton,
"to ensure that while getting bin Laden we don't transgress over the law.
We've been burned so badly in the past--we can't do that again."

Rap sheets. Chief Bratton is referring to the infamous city "Red Squads"
that targeted civil rights and antiwar groups in the 1960s and 1970s (Page
48). Veteran police officers say no one in law enforcement wants a return
to the bad old days of domestic spying. But civil liberties watchdogs warn
that with so many cops looking for terrorists, real and imagined, abuses
may be inevitable. "The restrictions on police spying are being removed,"
says attorney Richard Gutman, who led a 1974 class action lawsuit against
the Chicago police that obtained hundreds of thousands of pages of intelligence
files. "And I don't think you can rely on the police to regulate themselves."

Good or bad, intelligence gathering by local police departments is back.
Interviews with police officers, homeland security officials, and privacy
experts reveal a transformation among state and local law enforcement.

Among the changes:

Since 9/11, the U.S. Departments of Justice and Homeland Security have poured
over a half-billion dollars into building up local and state police intelligence
operations. The funding has helped create more than 100 police intelligence
units reaching into nearly every state.

To qualify for federal homeland security grants, states were told to assemble
lists of "potential threat elements"--individuals or groups suspected of
possible terrorist activity. In response, state authorities have come up
with thousands of loosely defined targets, ranging from genuine terrorists
to biker gangs and environmentalists.

Guidelines for protecting privacy and civil liberties have lagged far behind
the federal money. After four years of doling out homeland security grants
to police departments, federal officials released guidelines for the conduct
of local intelligence operations only last year; the standards are voluntary
and are being implemented slowly.

The resurgence of police intelligence operations is being accompanied by
a revolution in law enforcement computing. Rap sheets, intelligence reports,
and public records are rapidly being pooled into huge, networked computer
databases. Much of this is a boon to crime fighting, but privacy advocates
say the systems are wide open to abuse.

Behind the windfall in federal funding is broad agreement in Washington on
two areas: first, that local cops are America's front line of defense against
terrorism; and second, that the law enforcement and intelligence communities
must do a far better job of sharing information with state and local police.
As a report by the International Association of Chiefs of Police stressed:
"All terrorism is local." Oklahoma City bomber Timothy McVeigh was arrested
by a state trooper after a traffic stop. And last year, local police in Torrance,
Calif., thwarted what the FBI says could have been America's worst incident
since 9/11--planned attacks on military sites and synagogues in and around
Los Angeles by homegrown jihadists.

The numbers tell the story: There are over 700,000 local, state, and tribal
police officers in the United States, compared with only 12,000 FBI agents.
But getting the right information to all those eyes and ears hasn't gone
especially well. The government's failure at "connecting the dots," as the
9/11 commission put it, was key to the success of al Qaeda's fateful hijackings
in 2001. Three of the hijackers, including ringleader Mohamed Atta, were
pulled over in traffic stops before the attacks, yet local cops had no inkling
they might be on terrorist watch lists. A National Criminal Intelligence
Sharing Plan, released by the Justice Department in 2003, found no shortage
of problems in sharing information among local law enforcement: a lack of
trust and communication; lack of funding for a national intelligence network;
lack of database connectivity; a shortage of intelligence analysts, software,
and training; and a lack of standards and policies.

The flood of post-9/11 funding and attention, however, has started making
a difference, officials say. Indeed, it has catalyzed reforms already underway
in state and local law enforcement, giving a boost to what reformers call
intelligence-led policing--a kind of 21st-century crime fighting driven by
computer databases, intelligence gathering, and analysis. "This is a new
paradigm, a new philosophy of policing," says the LAPD's Bratton, who previously
served as chief of the New York Police Department. In that job, Bratton says,
he spent 5 percent of his time on counterterrorism; today, in Los Angeles,
he spends 50 percent. The key to counterterrorism work, Bratton adds, is
intelligence.

The change is "huge, absolutely huge," says Michigan State University's David
Carter, the author of Law Enforcement Intelligence. "Intelligence used to
be a dirty word. But it's a more thoughtful process now." During the 1980s
and 1990s, intelligence units were largely confined to large police departments
targeting drug smugglers and organized crime, but the national plan now being
pushed by Washington calls for every law enforcement agency to develop some
intelligence capability. Experts estimate that well over 100 police departments,
from big-city operations to small county sheriffs'offices, have now established
intelligence units of one kind or another. Hundreds of local detectives are
also working with federal agents on FBI-run Joint Terrorism Task Forces,
which have nearly tripled from 34 before 9/11 to 100 today. And over 6,000
state and local cops now have federal security clearances, allowing them
to see classified intelligence reports.

"The front line." Some police departments have grown as sophisticated
as those of the feds. The LAPD has some 80 cops working counterterrorism,
while other big units now exist in Atlanta, Chicago, and Las Vegas. Then
there's the NYPD, which is in a class by itself--with a thousand officers
assigned to homeland security. The Big Apple's intelligence chief is a former
head of CIA covert operations; its counterterrorism chief is an ex-State
Department counterterrorism coordinator. The NYPD has officers based in a
half-dozen countries, and its counterterrorism agents visit some 200 businesses
a week to check on suspicious activity.

Many of the nation's new intelligence units are dubbed "fusion centers."
Run by state or local law enforcement, these regional hubs pool information
from multiple jurisdictions. From a mere handful before 9/11, fusion centers
now exist in 31 states, with a dozen more to follow. Some focus exclusively
on terrorism; others track all manner of criminal activity. Federal officials
hope to eventually see 70 fusion centers nationwide, providing a coast-to-coast
intelligence blanket. This vision was noted by President Bush in a 2003 speech:
"All across our country we'll be able to tie our terrorist information to
local information banks so that the front line of defeating terror becomes
activated and real, and those are the local law enforcement officials."

Intelligence centers are among the hottest trends in law enforcement. Last
year, Massachusetts opened its Commonwealth Fusion Center, which boasts 18
analysts and 23 field-intelligence officers. The state of California is spending
$15 million on a string of four centers this year, and north Texas and New
Jersey are each setting up six. The best, officials say, are focused broadly
and are improving their ability to counter sophisticated crimes that include
not only terrorism but fraud, racketeering, and computer hacking. The federal
Department of Homeland Security, which has bankrolled start-ups of many of
the centers, has big plans for the emerging network. Jack Tomarchio, the
agency's new deputy director of intelligence, told a law enforcement conference
in March of plans to embed up to three DHS agents and intelligence analysts
at every site. "The states want a very close synergistic relationship with
the feds," he explained to U.S. News. "Nobody wants to play by the old rules.
The old rules basically gave us 9/11."

"Reasonable suspicion." The problem, skeptics say, is that no one
is quite sure what the new rules are. "Hardly anyone knows what a fusion
center should do," says Paul Wormeli of the Integrated Justice Information
Systems Institute, a Justice Department-backed training and technology center.
"Some states have responded by putting 10 state troopers in a room to look
at databases. That's a ridiculous approach." Another law enforcement veteran,
deeply involved with the fusion centers, expressed similar frustration. "The
money has been moved without guidance or structure, technical assistance,
or training," says the official, who is not authorized to speak publicly.
There are now guidelines, he adds, "but they're not binding on anyone." In
the past year, the Justice Department has issued standards for local police
on fusion centers and privacy issues, but they are only advisory. Most federal
funding for the centers now comes from the Department of Homeland Security,
but DHS also requires no intelligence standards from its grantees.

At the state level, regulations on police spying vary widely, but a general
rule of thumb comes from the Justice Department's internal guidelines that
forbid intelligence gathering on individuals unless there is a "reasonable
suspicion" of criminal activity. Since the reforms of the 1970s, the FBI
says its agents have followed this standard; Justice Department regulations
require local police who receive federal funding to do the same in maintaining
any intelligence files. But there is considerable leeway at the local level,
and since 2001, judges have watered down police spying limits in Chicago
and New York. The federal regs, moreover, have not stopped a parade of
questionable cases.

Suspicion of spying is so rife among antiwar activists, who have loudly protested
White House policy on Iraq, that some begin meetings by welcoming undercover
cops who might be present. "People know and believe their activities are
being monitored," says Leslie Cagan, national coordinator of United for Peace
and Justice, the country's largest antiwar coalition. There is some evidence
to back this up. Documents and videotapes obtained from lawsuits against
the NYPD reveal that its undercover officers have joined antiwar and even
bicycle-rider rallies. In at least one case, an apparent undercover officer
incited a crowd by faking his arrest. In Fresno, Calif., activists
learned in 2003 that their group, Peace Fresno, had been infiltrated by a
local sheriff's deputy--piecing it together after the man died in a car crash
and his obituary appeared in the paper.

The California Anti-Terrorism Information Center, a $7 million fusion center
run by the state Department of Justice, also ran into trouble in 2003 when
it warned of potential violence at an antiwar protest at the port of Oakland.
Mike Van Winkle, then a spokesman for the center, explained his concern to
the Oakland Tribune: "You can make an easy kind of a link that, if you have
a protest group protesting a war where the cause that's being fought against
is international terrorism, you might have terrorism at that protest. You
can almost argue that a protest against [the war] is a terrorist act." Officials
quickly distanced themselves from the statement. The center's staff had confused
political protest with terrorism, announced California's attorney general,
who oversees the office.

"Absurd" threats. But this expansive view of homeland security has
at times also extended to union activists and even library Web surfers. In
February 2006 near Washington, D.C., two Montgomery County, Md., homeland
security agents walked into a suburban Bethesda library and forcefully warned
patrons that viewing Internet pornography was illegal. (It is not.) A county
official later called the incident "regrettable" and said those officers
had been reassigned. Similarly, in 2004, two plainclothes Contra Costa County
sheriff's deputies monitored a protest by striking Safeway workers in nearby
San Francisco, identifying themselves to union leaders as homeland security
agents.

Further blurring the lines over what constitutes "homeland security" has
been a push by Washington for states to identify possible terrorists. In
2003, the Department of Homeland Security began requiring states to draft
strategic plans that included figures on how many "potential threat elements"
existed in their backyards. The definition of suspected terrorists was fairly
loose--PTEs were groups or individuals who might use force or violence "to
intimidate or coerce" for a goal "possibly political or social in nature."
In response, some states came up with alarming numbers. Most of the reports
are not available publicly, but U.S. News obtained nine state homeland security
plans and found that local officials have identified thousands of "potential"
terrorists. There are striking disparities, as well. South Carolina, for
example, found 68 PTEs, but neighboring North Carolina uncovered 506. Vermont
and New Hampshire found none at all. Most impressive was Texas, where in
2004 investigators identified 2,052 potential threat elements. One top veteran
of the FBI's counterterrorism force calls the Texas number "absurd." Included
among the threats cited by the states, sources say, are biker gangs, militia
groups, and "save the whales" environmentalists.

"The PTE methodology was flawed," says a federal intelligence official familiar
with the process, "and it's no longer being used." Nonetheless, these "threat
elements" have, in some cases, become the basis for intelligence gathering
by local and state police. Concern over the process prompted the ACLU in
New Jersey to sue the state, demanding that eight towns turn over documents
on PTEs identified by local police.

Another source of alarm for civil liberties watchdogs is the explosion in
police computing power. Spurred by a 2004 White House directive ordering
better information sharing, the Justice Department has poured tens of millions
of dollars into expanding and tying together law enforcement databases and
networks. In many respects, the changes are long overdue, yanking police
into the 21st century and letting them use the tools that bankers, private
investigators, and journalists routinely employ. From TV shows like 24 and
CSI, Americans are accustomed to scenes of police accessing the most arcane
data with a few keyboard clicks. The reality couldn't be more different.
Law enforcement was slow to get on the technology bandwagon, and its information
systems have developed into a patchwork of networks and databases that cannot
talk to one another--even within the same county. Rap sheets, prison records,
and court files are often all on different systems. This means that days
or even weeks can pass before court-issued warrants show up on police wanted
lists--leaving criminals out on the streets.

States and cities began linking up their systems in the 1990s, but since
9/11 their progress has been dramatic. At least 38 states are working on
some 200 projects tying together their criminal justice records. Concerned
over disjointed police networks around its key bases, the Navy's Criminal
Investigative Service is funding projects in Norfolk, Va., and four other
port cities, creating huge "data warehouses" stocked with crime files from
dozens of law enforcement agencies. The FBI is also running pilot database
centers in the St. Louis and Seattle areas in which the bureau makes its
case files available to police. To local cops who have long complained about
the FBI's lack of sharing, the development is downright revolutionary. "It
made people nervous as hell, including me," says the FBI's Thomas Bush, who
oversaw the initial program and now runs the FBI's Criminal Justice Information
Services Division. "The technical aspect is easy, but you need to have the
trust of the community and the security to safeguard the system."

The benefits of all this are undeniable. Armed with the latest information,
police will be better able to catch crooks and spot criminal trends. But
in this digital age, with so much data available about individual Americans,
the lines between what is acceptable investigation and what is intrusive
spying can quickly grow unclear. Consider the case of Matrix. Backed by $12
million in federal funds, at its peak in 2004 the Matrix system tapped into
law enforcement agencies from a dozen states. Using "data mining" technology,
its search engine ripped through billions of public records and matched them
with police files, creating instant dossiers. In the days after 9/11, Matrix
researchers searched out individuals with what they called "high terrorist
factor" scores, providing federal and state authorities a list of 120,000
"suspects."

Law enforcement officials loved the system and made nearly 2 million queries
to it. But what alarmed privacy advocates was the mixing of public data with
police files, profiling techniques that smacked of fishing expeditions, and
the fact that all these sensitive data were housed in a private corporation.
Hounded by bad publicity and concerned that Matrix might be breaking privacy
laws, states began pulling out of the system. Then, early last year, the
Justice Department quietly cut off funding.

Matrix no longer exists, but similar projects are underway across the country,
including one run by the California Department of Justice. Having learned
from Matrix's mistakes, users are employing what tech specialists call
"distributed computing." Instead of creating a single, vast database, they
rapidly access information from sites in different states, often with a single
query. The effect is essentially the same. "If people knew what we were looking
at, they'd throw a fit," says a database trainer at one prominent police
department.

Hacker's discovery. Another concern is the quality--and security--of
all that information. In Minnesota, the state-run Multiple Jurisdiction Network
Organization ran into controversy after linking together nearly 200 law
enforcement agencies and over 8 million records. State Rep. Mary Liz Holberg,
a Republican who oversees privacy issues, found much to be alarmed about
when a local hacker contacted her after breaking into the system. The hacker
had yanked out files on Holberg herself, showing she was classified as a
"suspect" based on a neighbor's old complaint about where she parked her
car. "We had a real mess in Minnesota," Holberg later wrote. "There was no
effective policy for individuals to review the data in the system, let alone
correct inaccuracies." In late 2003, state officials shut down the system
amid concerns that it violated privacy laws in its handling of records on
juvenile offenders and gun permits.

Such problems threaten to grow as law enforcement expands its reach with
increased intelligence and computing power. The key to avoiding trouble,
say experts, is ensuring that concerns over privacy and civil liberties are
dealt with head-on. In a recent advisory aimed at police intelligence units,
the Department of Justice stressed that success in safeguarding civil liberties
"depends on appointing a high-level member of your agency to champion the
initiative." But that message apparently hasn't gotten through, judging from
the response at a conference sponsored by the Justice Department a few weeks
back on information sharing. Among the crowd of some 200 local and state
officials were intelligence officers, database managers, and chiefs of police.
When a speaker asked who in the audience was working with privacy officials,
not a single hand went up.

As Washington doles out millions of dollars for police intelligence, its
reliance on voluntary guidelines may backfire, warn critics, who worry that
abuses could wreck the important work that needs to be done. "We're still
diddling around," says police technology expert Wormeli. "We're not setting
clear policy on what we put in our databases. Should a patrol officer in
Tallahassee be able to look at my credit report? Most people would say, 'Hell,
no.'" Current regulations on criminal intelligence, he adds, were written
before the computer age. "They were great in their day, but they need to
be updated and expanded."

Civil liberties watchdogs like attorney Gutman, meanwhile, want to know how
efforts to stop al Qaeda have ended up targeting animal rights advocates,
labor leaders, and antiwar protesters. "You've got all this money and all
this equipment--you're going to find someone to use it on," he warns. "If
there aren't any external checks, there's going to be an inevitable drift
toward abuses." But boosters of intelligence-led policing say that today's
cops are too smart to repeat mistakes of the old Red Squads. "We're trying
to develop policies to build trust and relationships, not spy," says Illinois
State Police Deputy Director Kenneth Bouche. "We've learned a better way
to do it." Perhaps. But for now, at least, the jury on this case is still
out.